Aboriginal Housing Company Ltd v Kaye-Engel (No. 4)
[2014] NSWSC 719
•30 May 2014
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Aboriginal Housing Company Ltd v Kaye-Engel (No. 4) [2014] NSWSC 719 Hearing dates: 30 May 2014 Decision date: 30 May 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Pending the final hearing of these proceedings the Defendant is to pay an occupation fee of $260 per fortnight, the first such payment to be made on 6 June 2014;
2. The Defendant is to pay the Plaintiff's costs of the motion limited to the filing fee on the Notice of Motion.
Catchwords: LANDLORD AND TENANT - rent or occupation fee - claim that tenancy has been terminated - no rent of occupation fee paid despite order to do so - pending determination of proceedings occupation to be paid Category: Interlocutory applications Parties: Aboriginal Housing Company Ltd (Plaintiff)
Natalie Kaye-Engel (Defendant)Representation: Counsel:
A Scotting & L Edwards (Plaintiff)
P Lane (Defendant) (Direct access)
Solicitors:
Ashurst Australia (Plaintiff)
No solicitor (Defendant)
File Number(s): 2013/90824
Judgment
These proceedings have had a chequered history from the time that they were commenced by Miss Kaye-Engel on 21 March 2011 in this Court. There were associated proceedings brought by her in the Consumer Trader and Tenancy Tribunal on 7 December 2010 and proceedings brought by the Aboriginal Housing Company Ltd in the CTTT on 14 March 2011. All of the proceedings concern her occupation of a property at 16 Pearl Street, Newtown which is owned by the Company.
The dispute between the parties concerns the amount of rent that ought to be paid by Miss Kaye Engel and the state and condition of the premises as asserted by her.
From 1987 to 2004, she was paying $85 a week. That increased to $120 a week in August/September 2004. There were then increases required to be paid by the Company commencing in April 2008 at $140 per week. These increased over time to $160 a week from March 2009, $180 a week from August 2009, $200 a week from September 2010, $220 a week from November 2010.
It is not necessary to explore the reason for those increases, nor the differing periods in respect of which they applied. When the proceedings in this court came before Hallen J on 28 March 2013, his Honour made an order that an occupation fee of $260 per fortnight was to continue to be paid by Miss Kaye-Engel until a determination of various notices of motion brought by both parties in the proceedings.
That occupation fee was paid until 20 June 2013, but after that time no fee of any sort has been paid by Miss Kaye-Engel.
The proceedings were reorganised pursuant to orders made by Kunc J on 14 June 2013 and I have been case managing them since December 2013.
The Housing Company has moved by Notice of Motion filed 9 May 2014 that until the proceedings are determined, there should be payable an occupation fee of $260 per fortnight.
On that application, an affidavit has been read on behalf of Miss Kaye Engel which sets out hers and her family's financial position. It is perfectly clear that she is in a very difficult financial position, with what little income she receives being barely sufficient or not sufficient to cover her outgoings.
She discloses she has two children who reside with her. Neither of them at the present time contributes to the cost of living there but both have said they are prepared to do so. One of them is on Newstart allowance, the other is in employment earning between $600 and $700 per week.
In all the circumstances, having regard to the rent that had been fixed by the Company from November 2010, and the order made by Hallen J, I consider that the figure ordered to be paid by Hallen J is the appropriate figure to be paid pending a final determination of these proceedings.
That might be seen as a substantial concession to Miss Kaye-Engel, having regard to the rent that is actually levied on the property, but takes into account the matters that she has raised in the proceedings that she brought both in the CTTT and in this Court.
The Company seeks costs limited to the filing fee on the Notice of Motion.
I have raised, on more than one occasion when the proceedings have been before me, the fact that Miss Kaye-Engel has not been paying any form of occupation fee though continuing to occupy the premises. It does not appear that she chose voluntarily to do anything about that. That seems to me to have been the principal reason that the Company was forced to file the Notice of Motion. It is appropriate therefore that she should pay the costs of that filing fee.
Accordingly I make these orders:
1. Pending the final hearing of these proceedings the Defendant is to pay an occupation fee of $260 per fortnight, the first such payment to be made on 6 June 2014;
2. The Defendant is to pay the Plaintiff's costs of the Motion limited to the filing fee on the Notice of Motion.
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Amendments
05 June 2014 - Typographical error in order no. 1 amended
Amended paragraphs: Coversheet and paragraph 14
Decision last updated: 05 June 2014
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